Since 1977, Jon Michael Probstein has assisted people and businesses in all matters. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com

Wednesday, February 1, 2017

PROTECTING THE RIGHT TO COMPLAIN

On December 14, 2016, President Obama signed into effect the “Consumer Review Fairness Act of 2016” (the “Act”), making it more difficult for businesses to bring lawsuits over negative reviews.

From the House Report:

"This bill makes a provision of a form contract void from the inception
if it: (1) prohibits or restricts an individual who is a party to such a
contract from engaging in written, oral, or pictorial reviews, or other
similar performance assessments or analyses of, including by electronic
means, the goods, services, or conduct of a person that is also a party
to the contract; (2) imposes penalties or fees against individuals who
engage in such communications; or (3) transfers or requires the
individual to transfer intellectual property rights in review or
feedback content (with the exception of a nonexclusive license to use
the content) in any otherwise lawful communications about such person or
the goods or services provided by such person.

A "form contract" is a
contract with standardized terms: (1) used by a person in the course of
selling or leasing the person's goods or services, and (2) imposed on
an individual without a meaningful opportunity to negotiate the
standardized terms. The definition excludes an employer-employee or
independent contractor contract.

The standards under which provisions of a form contract are considered void under this bill shall not be construed to affect:

legal duties of confidentiality;

civil actions for defamation, libel, or slander; or

a
party's right to establish terms and conditions for the creation of
photographs or video of such party's property when those photographs or
video are created by an employee or independent contractor of a
commercial entity and are solely intended to be used for commercial
purposes by that entity.

Such standards also shall not be
construed to affect any party's right to remove or refuse to display
publicly on an Internet website or webpage owned, operated, or
controlled by such party content that: (1) contains the personal
information or likeness of another person or is libelous, harassing,
abusive, obscene, vulgar, sexually explicit, inappropriate with respect
to race, gender, sexuality, ethnicity, or other intrinsic
characteristic; (2) is unrelated to the goods or services offered by or
available at such party's website; or (3) is clearly false or
misleading.

A provision shall not be considered void under this
bill to the extent that it prohibits disclosure or submission of, or
reserves the right of a person or business that hosts online consumer
reviews or comments to remove, certain: (1) trade secrets or commercial
or financial information; (2) personnel and medical files; (3) law
enforcement records; (4) content that is unlawful or that a party has a
right to remove or refuse to display; or (5) computer viruses or other
potentially damaging computer code, processes, applications, or files.

A person is prohibited from offering form contracts containing a provision that is considered void under this bill."

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Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/